Citation NR: 9636972
Decision Date: 12/30/96 Archive Date: 01/06/97
DOCKET NO. 95-10 142 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for porphyria cutanea tarda
(PCT) secondary to Agent Orange exposure.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Curtis W. Fetty, Associate Counsel
INTRODUCTION
The veteran had active service from September 1965 to
September 1969.
This appeal arises from an August 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina, which denied service
connection for chronic liver disease and PCT, claimed as the
result of exposure to Agent Orange. The veteran has appealed
to the Board of Veterans’ Appeals (Board) for service
connection for PCT as a result of exposure to Agent Orange.
He did not file a notice of disagreement or substantive
appeal with respect to the denial of service connection for
chronic liver disease, and that issue is not before the
Board. His testimony is referred to the RO as an application
to reopen the claim for service connection for chronic liver
disease.
The veteran filed a notice of disagreement in October 1994.
The RO issued a statement of the case in October 1994. The
veteran submitted a substantive appeal in December 1994 and
the RO issued a supplemental statement of the case in June
1996.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that Agent Orange exposure caused PCT;
he requests service connection for this condition.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
evidence of a well-grounded claim for service connection for
PCT secondary to exposure to Agent Orange.
FINDING OF FACT
No competent evidence has been submitted to show that the
veteran’s PCT was present in or within one year after
service, or otherwise was related to service or exposure to
Agent Orange in service.
CONCLUSION OF LAW
The veteran has not presented a well-grounded claim for
service connection for PCT. 38 U.S.C.A. § 5107(a) (West
1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The veteran had active service from September 1965 to
September 1969, including service in Vietnam.
The veteran’s service medical records are negative for skin
problems except for a September 1968 treatment report which
noted a diagnosis of chemical (cleaning fluid) burns on the
right hand.
The veteran applied for VA benefits in December 1993. In his
application, he indicated that he had been treated by VA for
skin blisters and possible skin cancer by VA since October
1993.
According to VA treatment records, the veteran was seen at
various times from October 1993 to January 1994. A November
1993 treatment report noted a tentative diagnosis of PCT and
noted blistering and white skin lesions for the past 3 to
4 months. The lesions were noted to be on the exposed areas
of both hands, neck and face and were treated with ointment
with no improvement. Treatment reports dated in December
1993 noted a diagnosis of chronic liver disease and chronic
hepatitis C. Other VA treatment reports noted that
phlebotomies were performed.
In March 1994, the RO received a letter from VA Medical
Center, Hampton, Virginia, Hematology Clinic. According to
the letter, the veteran underwent phlebotomy treatment in
October 1993 with only modest improvement in his cutaneous
lesions. The RO also received a copy of a letter from (VA)
Dr. Whitehurst which stated that the veteran’s diagnosis was
PCT and “PCT is a skin disease linked to dioxin exposure in
some individuals.”
The veteran underwent VA hospitalization in March 1996.
According to the report, he underwent a percutaneous liver
biopsy. His discharge diagnosis was chronic hepatitis due to
C virus and PCT. The report also noted that previous lesions
on his hands and arms had cleared.
In September 1996, the veteran testified before a member of
the Board to the effect that he had blistering on his hands
in 1970 and 1971 which he thought may have been a skin rash.
He used over-the-counter medications for itching and
blistering at that time. He testified that the first time
that he had been seen since active service was in 1972 or
1973 in Virginia by doctor who, not familiar with Agent
Orange, thought it was caused either by the sun or possibly
poison ivy. He also testified that subsequently a North
Carolina doctor opined that it may have been “fish poisoning”
or a form of impetigo. He also testified about his still-
born child and birth defects of his three living children.
The veteran testified that in 1993, a friend who saw his
condition suggested that it might be due to Agent Orange
exposure. He testified that he then went to the Hampton VA
Medical Center where PCT and a liver disorder were found. He
testified that VA physicians told him that there could be a
connection between his PCT and exposure to Agent Orange.
II. Legal Analysis
The threshold question in this matter is whether the veteran
has presented evidence of a well-grounded claim for service
connection for PCT, that is, a claim which is plausible. If
he has not presented a well-grounded claim, his appeal must
fail, and there is no duty to assist him further in the
development of this claim. 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet.App. 78 (1990).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by wartime
service. 38 U.S.C.A. § 1110 (West 1991). Additionally,
where a veteran served continuously for ninety (90) days or
more during a period of war, and the diseases listed at
§ 3.309(e) shall have become manifest to a degree of
10 percent or more at any time after service, except that
chloracne and other acneiform diseases consistent with
chloracne and porphyria cutanea tarda shall have become
manifest to a degree of 10 percent or more within a year
after the last date on which he was exposed to an herbicide
agent during service, such disease shall be presumed to have
been incurred in service, even though there is no evidence
of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991);
38 C.F.R. §§ 3.307, 3.309 (1994).
The United States Court of Veterans Appeals for the Federal
Circuit has determined that the Veterans’ Dioxin and
Radiation Exposure Compensation Standards Act, Public Law
No. 98-524, Section 5, 98 Stat. 2725, 2727 through 29 (1984)
does not preclude a veteran from establishing service
connection with proof of actual direct causation. See
Combee v. Brown, No. 93-7107 (Fed. Cir. September 1, 1994).
However, the United States Court of Veterans Appeals (Court)
has held that where the issue involves medical causation,
competent medical evidence which indicates that the claim is
plausible or possible is required to set forth a well-
grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93
(1993).
In order for a claim to be well grounded, various factors
must be present. Caluza v. Brown, 7 Vet.App. 498, 506
(1995). There must be competent evidence of a current
disability (a medical diagnosis). Brammer v. Derwinski,
3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski,
2 Vet.App. 141, 144 (1992). There must also be competent
evidence showing incurrence or aggravation of a disease or
injury in service (lay or medical evidence), Layno v. Brown,
6 Vet.App. 465 (1994); Cartright v. Derwinski, 2 Vet.App. 24
(1991); and of a nexus between the inservice injury or
disease and the current disability (medical evidence),
Lathan v. Brown, 7 Vet.App. 359 (1995); Grottveit v. Brown,
5 Vet.App. 91 (1993). The nexus requirement may be satisfied
by a presumption that certain diseases manifesting themselves
within certain prescribed periods are related to service.
Traut v. Brown, 6 Vet.App. 495 (1994); Goodsell v. Brown,
5 Vet.App. 36 (1993).
The medical evidence in this case shows that PCT did not
manifest itself until 1993, approximately 24 years after the
veteran’s separation from active service. Under 38 C.F.R.
§ 3.307(a)(6), the disease had but one year from the date
that the veteran was last exposed to the herbicide to
manifest itself in order for service connection for PCT to be
granted on a presumptive basis. The Board finds, in this
case, that the veteran has not submitted competent evidence
linking herbicide exposure while in Vietnam and subsequent
development of PCT. While he has testified that he
experienced certain related manifestations shortly after
service, these assertions, as they relate to questions of
medical diagnosis and causation, are not probative because
laypersons (i.e., those without medical expertise, cannot be
competent to offer such opinions. Moray v. Brown, 5 Vet.App.
211 (1993); Grottveit, Espiritu, supra. The Board also notes
that a VA examiner’s statement that “PCT is a skin disease
linked to dioxin in some individuals” falls short of
providing a direct link between the veteran’s PCT and his
exposure to Agent Orange. Indeed, the physician’s statement
reflects nothing more than the regulation acknowledges—
service connection will be presumed in some cases. This
case, however, does not meet the requirements of the
regulation. Consequently, in the absence of competent
evidence, a well-grounded claim has not been presented.
The veteran is advised that he may reopen his claim for
service connection for PCT secondary to exposure to Agent
Orange at any time by notifying the RO of such an intention
and submitting medical evidence that links this condition to
active service or shows the presence of PCT to a degree of
10 percent within one year of his separation from active
service.
ORDER
Service connection for PCT is denied, as a well-grounded
claim has not been presented.
J. E. DAY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991, amended by Supp. 1995), a decision of the Board of
Veterans' Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United States
Court of Veterans Appeals within 120 days from the date of
mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -